NO. 91-130 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsHARVEY WALTER NIEMI, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Patrick L. Paul, County Attorney; Steven Hudspeth, 

Deputy, Great Falls, Montana 

For Respondent : 

Daniel Donovan, Great Falls, Montana 

Submitted on Briefs: September 19, 1991 

Decided: February 19, 1992 
Justice Karla M. Gray delivered the Opinion of the Court. 

The State of Montana appeals a judgment of conviction and 

sentencing order fromthe Eighth Judicial District, Cascade County, 

which sentenced Harvey Walter Niemi (Harvey) to ten years 

imprisonment for attempt (deliberate homicide) and two years 

imprisonment for use of a dangerous weapon, both sentences 

suspended except for fifteen days already served. The District 

Court further sentenced Harvey to 4000 hours of community service. 

We affirm on another ground. 

We rephrase the issues presented on appeal to the following: 

Did the District Court err when it suspended Harvey's 

sentences of ten years imprisonment for attempt (deliberate 

homicide) and two years imprisonment for use of a dangerous weapon 

under 55 46-18-201(5) and -221(3), MCA? 

Harvey and Katherine Jean Niemi (Jean) were married on June 

10, 1966. Following their marriage, the couple resided in Great 

Falls, Montana. 

Both Harvey and Jean were employed as teachers: Jean retired 

in 1988 and Harvey retired in 1989. Through the years, Harvey and 

Jean generally were viewed as a happily married couple. Many 

perceived Harvey to be a mild-mannered, non-violent, and kind 

person. Prior to January 1990, Harvey's criminal record consisted 

of one minor traffic violation. 

2 
On January 9, 1990, Harvey and Jean began a normal day at 

home. Following a noon-time meal, Harvey told Jean that he was 

going to a local store to purchase some remodeling supplies. 

However, Harvey did not leave the home. He went to the basement, 

changed his clothing, put on an old pair of eyeglasses and a pair 

of panty hose over his head, and placed rubber gloves on his hands. 

He then waited for Jean to enter the basement. When Jean entered 

the basement to use a bathroom, Harvey stabbed her several times 

with a knife, wounding her in the head, chest, stomach, and hand. 

Following the stabbing, Harvey expressed remorse and said he could 

not understand how he could have committed such an offense. Jean 

recovered from the stab wounds. 

On January 23, 1990, the State charged Harvey by information 

with one count of attempt (deliberate homicide). Harvey pled not 

guilty to this charge on February 14, 1990. A jury trial was held 

on November 13 to November 20, 1990. At the trial, Harvey 

testified that for years he had repressed anger concerning Jean. 

He further testified that at the time of the stabbing, he felt he 

was not in his body, but rather, was above and behind his body, 

watching what was happening. Dr. William Stratford, a 

psychiatrist, testified that at the time of the stabbing, Harvey 

experienced a dissociative state of mind. On November 20, 1990, 

the jury found Harvey guilty of the charged offense. 

3 
Prior to sentencing, Harvey moved the District Court to find 

that 5 46-18-222, MCA, exempted him from the mandatory minimum 

sentencing penalties contained in § 45-5-102(2), MCA, the 

sentencing provision for deliberate homicide, and § 46-18-221(1), 

MCA, a sentencing provision for use of a dangerous weapon. Harvey 

argued that 5 46-18-222(2) and (3), MCA, exempted him from the 

mandatory minimum sentences because at the time he stabbed Jean 1) 

his mental capacity was significantly impaired, and 2) he was 

acting under unusual and substantial duress. At the sentencing 

hearing, Harvey abandoned his argument that he was acting under 

unusual and substantial duress at the time he stabbed Jean but 

maintained that his mental capacity was significantly impaired. 

Following oral argument, the District Court found that 

Harvey's mental capacity at the time he stabbed Jean did not exempt 

him from the mandatory minimum sentences under 55 45-5-102(2) and 

46-18-221(1), MCA. The District Court sentenced Harvey to ten 

years imprisonment for attempt (deliberate homicide) and two years 

imprisonment for use of a dangerous weapon, both sentences 

suspended except for fifteen days already served. The District 

Court further sentenced Harvey to 4000 hours of community service. 

The State filed its notice of appeal regarding Harvey's 

sentence on January 15, 1991. Harvey likewise filed a notice of 

appeal on March 8, 1991. On June 4, 1991, the State filed a brief, 

which in part anticipated and discussed issues Harvey could raise 

4 
in his cross-appeal. On August 6, 1991, Harvey filed a brief that 

resembles the format of a cross-appeal. On August 13, 1991, Harvey 

moved this Court to stay his appeal pending the outcome of the 

State's appeal under Montana Rule of Appellate Procedure 3. On 

September 9, 1991, this Court granted Harvey's request for a stay 

of his appeal. 

Because Harvey's cross-appeal has been stayed by this Court, 

issues raised by both the State and Harvey in their respective 

briefs that pertain to Harvey's cross-appeal will not be discussed 

herein. Accordingly, we will limit our discussion to the following 

issue: 

Did the District Court err when it suspended Harvey's 

sentences of ten years imprisonment for attempt (deliberate 

homicide) and two years imprisonment for use of a dangerous weapon 

under 55 46-18-201(5) and -221(3), MCA? 

The District Court at the sentencing hearing held that 

Harvey's mental capacity at the time he stabbed Jean did not exempt 

him from mandatory minimum sentencing under § 46-18-222, MCA. The 

District Court acknowledged, however, that it was a "close 

question" as to whether Harvey's mental capacity was significantly 

impaired at the time of the offense under 5 46-18-222(2), MCA. The 

District Court stated: 

When you look at what happened here, the overall event 

that occurred it is almost incredible and it is difficult 

to believe that anybody in their right mind in full 

5 
possession of their mental faculties would have committed 

this offense under these circumstances. . . . And 

although there has been a psychiatric explanation of what 

happened, this dissociative state, the jury did not 

accept that offered evidence in determining guilt of Mr. 

Niemi. Although the required proof, I think, to 

establish this mental capacity exception, I don't think 

it requires proof beyond a reasonable doubt as do the 

elements of the criminal offense. But, I really question 

whether -- there is certainly some indication, certainly 

some testimony here that the mental capacity of Mr. Niemi 

was impaired at that time when this offense occurred and 

maybe for a short period of time before it occurred when 

he was waiting. But, I find it difficult to accept that 

Mr. Niemi's mental capacity was so significantly impaired 

to justify an exception from mandatory minimum sentence. 

... 

This is the most unusual criminal case that I have presided 

over in my 14 years on the bench. It's very bizarre. 

Serious and yet the people that are involved are exemplary 

people and it just borders on mind boggling. 

The District Court further held that incarceration in this 

instance would be inappropriate in light of Harvey's stellar 

community service record, the nature of the offense, the 

unlikelihood that Harvey would ever attempt to harm Jean again, 

Harvey's remorse, and his lack of a previous criminal record. 

Thereafter, the District Court, inter alia, sentenced Harvey to the 

mandatory minimum sentence of ten years imprisonment for attempt 

(deliberate homicide) under 5 45-5-102(2), MCA, and the mandatory 

minimum sentence of two years imprisonment for use of a dangerous 

weapon under § 46-18-221(1), MCA; the court suspended both 

sentences except for fifteen days already served. The District 

Court cited State v. Arbgast (1983), 202 Mont. 220, 656 P.2d 828, 

6 
as authority for its ability to suspend Harvey's mandatory minimum 

sentences. 

The State argues that Arbaast is not applicable to these 

facts. The State further argues that the District Court erred by 

suspending the sentences in this case under 55 46-18-201(5) and 

-221(3), MCA. Section 46-18-201(5), MCA, provides "[elxcept as 

provided in 46-18-222, the imposition or execution of the first 10 

years of a sentence of imprisonment imposed under 45-5-102 may not 

be deferred or suspended." Section 46-18-221(3), MCA, provides 

that the mandatory minimum sentence for use of a dangerous weapon 

"may not be deferred or suspended, except as provided in 46-18- 

222." The State argues that because the District Court held that 

§ 46-18-222, MCA, did not apply, 55 46-18-201(5) and -221(3), MCA, 

require the court to sentence Harvey to serve twelve years 

imprisonment for attempt (deliberate homicide) and use of a 

dangerous weapon. 

We agree that Arbcrast is not applicable here. In Arbqast, 

suspension of the defendant's sentence was & specifically limited 

by statute to one of the exceptions contained in 5 46-18-222, MCA. 

Here, both statutes under which Harvey was sentenced expressly 

prohibit suspension of the sentence unless 5 46-18-222, MCA, 

applies. 

However, following a careful review of the record, we hold 

that the sentences at issue herein can be suspended because 

7 
Hamey's mental capacity at the time of the offense was 

significantly impaired under 5 46-18-222(2), MCA. Section 46-18- 

222(2), MCA, provides in part that a defendant's mandatory minimum 

sentence may be suspended if "the defendant's mental capacity, at 

the time of the commission of the offense for which he is to be 

sentenced, was significantly impaired, althoush not so impaired as 

to constitute a defense to the prosecution." [Emphasis added. 3 

Here, the jury did not find that Dr. Stratford's testimony 

concerning Harvey's mental state supported a defense to the 

offense. However, 5 46-18-222(2), MCA, still allows a court in 

sentencing a defendant to suspend mandatory minimum sentencing if 

it finds the defendant's mental capacity was significantly impaired 

but not so impaired as to constitute a defense. We emphasize again 

that the District Court stated that the issue of whether Harvey was 

significantly impaired was a "close question." Moreover, we are 

persuaded by Dr. Stratford's testimony, which details how Harvey 

experienced a dissociative state of mind at the time of the 

offense. We therefore affirm the result of the District Court's 

judgment of conviction and sentencing order on the ground that 

Harvey is exempt from mandatory minimum sentencing under 5 46-18- 

222(2), MCA. 

8 
We concur: 

/- 

I 1’- 

i , 

9 
February 19, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Hon. Marc Racicot, Attorney General 

Justice Building 

Helena, MT 59620 

Patrick Paul, Cascade County Attorney 

Steven Hudspeth, Deputy County Attorney 

Cascade County Courthouse 

Great falls, MT 59401 

Daniel Donovan 

Attorney at Law 

P.O. Box 6573 

Great Falls, MT 59406 

, Asst. Atty Gen 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA